Wellfleet panel blocks new restaurant

A decision by the zoning board of appeals has ended plans by RooBar owner Dana Heilman to open a restaurant near the town pier, at least this year.

ELSPETH PIERSON

WELLFLEET — A decision by the zoning board of appeals has ended plans by RooBar owner Dana Heilman to open a restaurant near the town pier, at least this year.

The denial followed a complaint by an abutter whose family has a local restaurant.

The board earlier had granted Heilman and his business partner, Steve Swain of Centerville, a special permit to begin renovations on the former Captain Higgins restaurant, but a month later, after the abutter's complaint, it denied permission to open.

Heilman, who operates the RooBar restaurants in Hyannis, Falmouth and Chatham, is turning his sights on Woods Hole, where he and Swain plan to open a new restaurant in the former Naked Lobster location.

Wellfleet zoning bylaws do not allow restaurants in what is known as the central zoning district unless that is the pre-existing use of the property. Even though a restaurant had been located in a building before, a new one can only go in if the previous owners had made good-faith efforts to keep it open.

The zoning board decided the good-faith effort hadn't been made.

Former owner Betty Balch opened Captain Higgins in 1998 and had plans to open for the 2005 season until the fire suppression system in the kitchen failed and reopening became too costly, according to her attorney, Ben Zehnder.

He told the appeals board that Balch made a good-faith effort to reopen by paying for roof and refrigerator repairs and $15,000 in septic system permits.

A required $350,000 septic upgrade coupled with a price tag of more than $1.5 million for the building had scared away potential buyers until Heilman and Swain came along. They said they planned to build a second-story deck.

Earlier this year, Building Inspector Paul Murphy ruled the restaurant building had not been abandoned, which initially satisfied the appeals board.

But board members ruled differently at their Feb. 28 meeting, after receiving the complaint from abutter Michael Parlante, who owns a residential property across the street from the restaurant building. Parlante's family also owns one of two restaurants in the harbor area, The Bookstore Restaurant.

The appeals board found that the restaurant use in the former Captain Higgins building was not abandoned. But it did not agree that good-faith efforts had been made to re-establish the use within the required two-year period.

Bruce Drucker, the board's vice chairman, said last week the board decided to issue a special permit limited to construction at its Jan. 24 meeting. On Feb. 28, it ruled on the issue of use, which negated the earlier special permit, he said.

"We can only decide to rule on what's in front of us," he said.

Board of Selectman Chairwoman Jacqui Beebe, who said she was speaking as a citizen, said she did not think the appeals board's decision was in the best interests of the town. She added that selectmen have been unanimous about the need to give restaurant owners flexibility to continue operating.

While Zehnder plans to appeal the decision, Heilman and Swain have abandoned attempts to open the business this year.